Extra 17 Months of Optional Practical Training for STEM Students in Jeopardy

Federal court decision vacates DHS grant of extra 17 months' OPT -- but with a chance for DHS to fix the problems before students are affected.

Foreign students studying in the U.S. on F-1 visas are eligible for what's called "Optional Practical Training (OPT)," a type of work permit, after completing their U.S. studies. And under a 2008 Department of Homeland Security (DHS) regulation, if you are a student who has received a degree in science, technology, engineering, or mathematics (STEM), you are eligible to extend your OPT status 17 months beyond the normal one year.

This DHS regulation was meant to deal with the regularly high demand for H-1B visas, with many eligible H-1B applicants (students and others) turned away annually due to limits on the number of visas that can be given out.

This 17-month extension opportunity was, however, challenged in federal court in August of 2015.

The U.S. District Court for the District of Columbia, in a case called Washington Alliance of Technology Workers (WashTech) v. DHS, issued a ruling saying that the DHS did not follow required procedures when it created the extension. The court accordingly vacated (canceled) the DHS regulation.

That's not the end of the story, however, and F-1 students who currently have or were planning to apply for STEM-based OPT need not panic.

So as to minimize the effect on applicants, the court post-dated the "vacatur" by six months. That gives DHS until February 12, 2016 to resubmit the rule with appropriate notice and opportunity for public comment. Until that date, applicants will still be able to utilize the existing 17-month extension rule. If the regulation is successfully repromulgated, no one should be affected.

One question that remains open is, if you apply for OPT as a stem student and are granted this 17 months' extra time within near enough to February 12, 2016 that the date arrives before you're done with your OPT program, and DHS fails to repromulgate the relevant regulation, will your right to continue working at OPT end on February 12, 2016? USCIS hasn't addressed this yet. And if all goes well, it won't come to that!